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March 20, 2006, Alert No. 1,332.
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USTR Portman Discusses Trade and IPR in China

3/15. U.S. Trade Representative (USTR) Rob Portman gave a speech, and answered questions, at a convention in Washington DC hosted by the Consumer Electronics Association (CEA). See, transcript.

He discussed ongoing World Trade Organization (WTO) trade talks, the FSC-ETI tax regimes dispute with the European Union (EU), recently concluded bilateral and regional trade agreements, and new negotiations with Malaysia and Korea.

With respect to trade negotiations with Malaysia and Korea, he said that "we will look at phasing out tariffs on consumer electronics not covered by ITA", the Information Technology Agreement. He added that "These free trade agreements will also address investment, distribution, telecomm and financial services, and help make consumer electronics companies supply chains more efficient."

He also discussed recent U.S. opposition to foreign investment in U.S. ports. He insisted that "The United States welcomes investment. We are open to investment."

Rob PortmanPortman (at right) also discussed trade with the People's Republic of China, the USTR's recent top to bottom review of trade policy, and intellectual property rights (IPR) and piracy in China.

See, story titled "USTR Releases 2005 Trade Report" in TLJ Daily E-Mail Alert No. 1,322, March 3, 2006.

He focused on IPR theft in China. "Here the United States is disproportionately impacted. Why? Because we have a lot of knowledge-based exports, including yours. But think about it. Software. I think China is number two in the world now in terms of computer purchases, hardware, this stuff, and yet about number 25 in terms of software. There’s a reason for that. You can buy whatever we have here, Microsoft is on this computer right now. You can buy it on the street corner for a fraction of the cost that it cost to produce it and do the research and innovation and development. And that’s not fair. That disproportionately impacts US exports. That’s the point. It’s not fair, but it also hurts us. We would have greater exports."

He said that the U.S. also has a comparative advantage in movies. "We may not all be great fans of what comes out of Hollywood these days, but it's a comparative advantage we have. But in China there's very little market. Why? Because you can get it on the street for a fraction of the cost." And, he said that the U.S. has a comparative advantage in music recordings, but cannot take advantage of that.

He also stated that "intellectual property, piracy in China is a huge problem for us. We believe they are not doing enough to make their changes in laws and regulations, but more significantly in enforcement. They’re not enforcing the laws."

He again made the argument that it is in China's best interest to enforce IPR. "When China looks back ten years from now having, I think, made substantial progress in piracy by that time, I certainly hope so, I think they will wish they'd done it sooner, because it’s Chinese entrepreneurs and innovators, Chinese companies, song writers, movie makers, who are being penalized along with US exporters. You cannot have a successful and healthy economy unless you get this under control. So I don’t think it's just a US issue. I think we have to do a better job explaining to our trading partners why it’s also in their interest as these economies mature and modernize, that they have a system of enforcement and intellectual property that allows their economies to prosper."

Portman also responded to critics of free trade. He said that "many people out there seem to think that trade is not a good idea. Increasingly, we see in some of the public discussions, including the public airwaves, this thought that trade is responsible for us losing jobs and that trade is responsible for wages shrinking."

He responded that "facts state otherwise. The United States is enjoying high growth; we had 8.5% growth last year, perhaps bigger growth this year. Unemployment is 4.8% -- a historical low. We’ve created over 2 million jobs in the last year in this country; we're relatively a lead economy, as I said. It's working for us."

Portman concluded his speech with this comment. "But there's more to come: there's more innovation, there's more creativity, and we must be sure that we have our minds on creativity as the opportunity through markets and free trade to be able to achieve the benefits for your workers, for our economy, and indeed for the global economy."

DUSTR Bhatia Discusses Trade Talks with Malaysia

3/17. Deputy U.S. Trade Representative Karan Bhatia gave a speech in Kuala Lumpur, Malaysia.

Bhatia stated that "Right now, electronic goods and items account for roughly three quarters of Malaysia’s exports to the United States. It’s a good trade; it’s a healthy trade, it’s a growing trade -- but it is focused in one area. We would like to see that relationship broadened out to encompass other areas. Particularly, we are interested in seeing potential new growth in the area of high technology, high-tech items that we believe Malaysia can compete effectively in in the global market."

He commented that some U.S. companies are already "strong investors in the Malaysian economy", including Intel, Motorola, Discovery Communications, and Oracle.

He said that "One of the features of our Free Trade Agreement is that it not only reduces tariffs and non-tariff barriers, but it also does things like establish regimes for investment, encouraging a stable climate that would allow greater investment. It establishes rules governing intellectual property rights, and in areas like government procurement, and market access as well. All this builds confidence on the part of U.S. companies to grow their investments in the Malaysian economy."

FCC Creates Public Safety and Homeland Security Bureau

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an order establishing within the FCC a Public Safety and Homeland Security Bureau. This item is FCC 06-35.

The FCC issued a short release [PDF] that describes this item. This release states that there will be three divisions in this bureau, titled "Policy Division", "Public Communications Outreach & Operations Division" and the "Communications Systems Analysis Division".

This release states that the issues that will be handled by the new bureau will include "public safety communications". It also categorizes "Communications Assistance for Law Enforcement Act (CALEA)" as a subset of "public safety communications".

All four FCC Commissioners wrote separate statements praising the formation of the new bureau. None wrote about FCC activities and operations related to the Communications Assistance for Law Enforcement Act (CALEA). See, Martin statement [PDF], Copps statement [PDF], Adelstein statement [PDF], and Tate statement [PDF]

The U.S. Court of Appeals (DCCir) will hear oral argument on May 5, 2006, in ACE v. FCC, a challenge to the FCC's order that provides that facilities based broadband service providers and interconnected VOIP providers are subject to requirements under the 1994 CALEA.

The FCC adopted this order at its August 5, 2005, meeting. See, story titled "FCC Amends CALEA Statute" in TLJ Daily E-Mail Alert No. 1,191, August 9, 2005. The FCC released the text [59 pages in PDF] of this item on September 23, 2005. It is FCC 05-153 in ET Docket No. 04-295 and RM-10865. See also, story titled "FCC CALEA Order Challenged" in TLJ Daily E-Mail Alert No. 1,240, Wednesday, October 26, 2005.

See also, ACE brief [71 pages in PDF] and FCC brief [52 pages in PDF]. This case is American Council on Education, et al. v. FCC and USA, U.S. Court of Appeals for the District of Columbia, App. Ct. Nos. 05-1404, 1408, 1438, 1451 and 1453, Judges Sentelle, Brown and Edwards presiding.

FCC Adopts Further NPRM Re Children's Programming Obligations

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Second Further Notice of Proposed Rulemaking" regarding the obligation of television licensees to provide educational programming for children and the requirement that television licensees protect children from excessive and inappropriate commercial messages.

The FCC issued a short release [PDF] that describes this item. It states that the FCC "seeks public comment on a joint proposal filed by several broadcast and programming entities and children's television advocates regarding previously adopted requirements of television licensees to provide educational programming for children."

For example, it asks whether the FCC should modify the website rule contained within the September 9, 2004, Report and Order and Further Notice of Proposed Rulemaking. See, story titled "FCC Adopts Report and Order Re Children's Programming Obligations of DTV Broadcasters" in TLJ Daily E-Mail Alert No. 975, September 13, 2004.

This proceeding is titled "In the Matter of Children's Television Obligations Of Digital Television Broadcasters". This item is FCC 06-33 in MM Docket No. 00-167.

FCC Releases Indecency Orders

3/15. The Federal Communications Commission (FCC) released three orders (that were adopted but not announced last month) fining various television broadcasters for indecent content.

First, the FCC released an order [76 pages in PDF] regarding numerous different television programs. It finds some to be not indecent. It finds others indecent. It fines some licensees who broadcast indecent programs, but not others. This item is titled "Notices of Apparent Liability  and Memorandum Opinion and Order" and numbered FCC 06-17.

Second, the FCC released a notice of apparent liability for forfeiture [28 pages in PDF] that finds that CBS Television Network affiliated stations and CBS broadcast an indecent episode of the program titled "Without a Trace". It states that this episode depicted "teenage boys and girls participating in a sexual orgy". The total of these fines is over $3.6 Million. This item is FCC 06-18.

Third, the FCC released a forfeiture order [30 pages in PDF] that fines CBS $550,000 in connection with the exposure of the breasts of a singer named Janet Jackson in a broadcast music performance. This is FCC 06-19.

See also, FCC release [PDF] summarizing its orders.

FCC Chairman Kevin Martin wrote in a separate statement that "Congress has long prohibited the broadcasting of indecent and profane material and the courts have upheld challenges to these standards. But the number of complaints received by the Commission has risen year after year. They have grown from hundreds, to hundreds of thousands. And the number of programs that trigger these complaints continues to increase as well. I share the concerns of the public -- and of parents, in particular -- that are voiced in these complaints."

Commissioner Michael Copps suggested that indecency is related to increased concentration of broadcast media ownership. He wrote that "If heightened media consolidation is indeed a source for the violence and indecency that upset so many parents, shouldn’t the Commission be cranking that into its decisions on further Federal Communications Commission FCC loosening of the ownership rules? I hope the Commission, before voting again on loosening its media concentration protections, will finally take a serious look at this link and amass a credible body of evidence and not act again without the facts, as it did in 2003."

Commissioner Jonathan Adelstein concurred in part and dissented in part. He wrote that "It is certain to strike fear in the hearts of news and documentary makers, and broadcasters that air them, which could chill the future expression of constitutionally protected speech."

"I find that today's decision, while reaching some appropriate conclusions both in identifying indecent material and in dismissing complaints, is in some ways dangerously off the mark. I cannot agree that it offers a coherent, principled long-term framework that is rooted in common sense. In fact, it may put at risk the very authority to protect children that it exercises so vigorously."

New Commissioner Deborah Tate wrote that "Not only is this the law, but it also is the right thing to do."

The FCC's statutory authority for these actions is 18 U.S.C. § 1464. It provides in full that "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."

The judicial precedent upon which the FCC primarily relies is the Supreme Court's opinion in the involving comedian George Carlin's use of "filthy words", FCC v. Pacifica Foundation, 438 U.S. 726 (1978). This was a 5-4 opinion. Justice Stevens wrote the opinion of the Court. None of the others members of that Court remain on the Court.

In the just released orders, the FCC citing Pacifica, wrote that "The federal courts have consistently upheld Congress's authority to regulate the broadcast of indecent material, as well as the Commission's interpretation and implementation of the governing statute. In 1978, the U.S. Supreme Court, in upholding the constitutionality of the prohibition against the broadcast of indecent material, concluded that ``special treatment of indecent broadcasting´´ was appropriate."

In Pacifica, the Court upheld the FCC's order regarding a radio broadcast of Carlin's monologue. It wrote that "We have long recognized that each medium of expression presents special First Amendment problems. ... And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve ``the public interest, convenience, and necessity.´´"

The Supreme Court has offered various rationales for regulation of broadcast speech, including scarcity of spectrum. However, in Pacifica, the Court cited the rationale that "the broadcast media have established a uniquely pervasive presence in the lives of all Americans".

Challenges to the just issued orders may present the Court with an occasion to revisit its application of First Amendment principles to broadcast speech. The Court could conclude that the deployment of new media and new technologies for video, and other media, have affected previously articulated rationales for regulation of broadcast speech.

A narrowly written opinion might only revisit Pacifica's analysis of regulation of indecency. A broader opinion might also comment on the analyses that underlie NBC v. US, 319 U.S. 190 (1943), and Red Lion v. FCC, 395 U.S. 367 (1969).

The Parents Television Council (PTC) praised the FCC's orders. Tim Winter, its Executive Director, stated in a release that "The broadcast airwaves are public property and belong to the American people, and as such the broadcast industry must abide by community standards of decency while using the public airwaves between 6:00 am and 10:00 pm. This is not a proposal; this is law -- well-settled law that was affirmed by the Supreme Court three decades ago."

Adam Thierer of the Progress and Freedom Foundation (PFF) stated in a release that the FCC's orders "represent a significant expansion of its content control regime. The agency is testing the limits of its own powers to regulate speech. The silver-lining here might be these fines provoking a court challenge, and the courts finally revisiting the scope of the First Amendment in an age of convergence and media abundance."

"The courts have grown less tolerant of government restrictions on media in recent years, especially for new technologies like the Internet. With broadcasters now being challenged by a staggering array of multi-media competitors and devices, the courts will be less likely to support tradition 'scarcity-based' rationales for broadcast industry content regulation. The fact that the fines were this steep could make the court's job even easier in that regard."

People and Appointments

3/17. Rep. Sherwood Boehlert (R-NY), the Chairman of the House Science Committee, announced that he will not seek re-election in November. At the end of this Congress he will have been Chairman for six years. Republicans serve under six year term limits.

3/17. Donald Hoerl was named acting Regional Director of the Securities and Exchange Commission's (SEC) Central Regional Office, which covers the states of Colorado, North Dakota, South Dakota, Utah, Wyoming and New Mexico. He has been the Associate Regional Director for Enforcement in that office since 1997. See, SEC release.

Copps Announces Staff Changes

3/17. Jordan Goldstein, Federal Communications Commission (FCC) Commissioner Michael Copps' Senior Legal Advisor, will leave. Copps will promote Jessica Rosenworcel to this position. In addition, Copps named Bruce Gottlieb to be a new Legal Advisor.

Gottlieb works at the law firm of Harris Wiltshire & Grannis (HWG). Before that, he worked for the law firm then named Wilmer, Cutler, Pickering, Hale & Dorr (now Wilmer Hale). He also clerked for Judge David Tatel of the U.S. Court of Appeals (DCCir). Also, before law school, he was a staff writer at Slate Magazine. See, release [PDF].

Gottlieb has represented leading internet and technology companies at HWG. He represented Yahoo. See, amicus brief [PDF] in eBay v. MercExchange. The Supreme Court will hear oral argument on March 29. This is a patent case involving the availability of injunctive relief.

He represented Cisco. See, August 2005 comment [PDF] filed with the FCC in its proceeding imposing E911 mandates on VOIP service providers.

He represented the High Tech Broadband Coalition, VON Coalition, and in Minnesota PUC v. FCC. See, intervenors' brief [51 pages in PDF].

He represented the Net Coalition (see, notice of ex parte FCC communication regarding CALEA and VOIP), and Dell (see, notice of ex parte FCC communications regarding unlicensed use of broadcast TV spectrum white space).

He has also represented communications companies, other than RBOCs. He represented Broadwing Communications and Savvis Communications. See, opposition [63 pages in PDF] to the merger of SBC and AT&T filed with the FCC in May, 2005. He represented General Communications, Inc., an Alaska telecommunications company. See, comment [PDF] filed with FCC regarding universal service.

He also represented the U.S. Chamber of Commerce. See, amicus brief in American Trucking Associations v. Michigan PSC).

FCC Adopts NPRM Re Public Safety Communications in the 700 MHz Band

3/17. The Federal Communications Commission (FCC) adopted, but did not release, an item titled "Eighth Notice of Proposed Rulemaking" regarding public safety communications in the 764-776 MHz and 794-806 MHz bands.

The FCC issued a short release [PDF] that describes this item. It states that the FCC "seeks comment on whether certain channels within the 24 MHz of spectrum in the 700 MHz band allocated for public safety use should be modified to accommodate broadband communications."

The release elaborates that "The 700 MHz public safety spectrum is currently being used by television broadcasters during the digital television (DTV) transition but will become available for use by public safety agencies by February 18, 2009, when the DTV transition is completed."

The release states that this NPRM "seeks comment on three specific proposals to modify the 700 MHz band plan submitted by the National Public Safety Telecommunications Council; Motorola, Inc.; and Lucent Technologies, Inc. All three plans propose combining the general use, interoperability, and reserve wideband segments in order to permit broadband communications. The proposals also support the creation of guard bands to protect narrowband voice operations. Today’s Notice also invites additional proposals and seeks comment on the FCC’s tentative conclusion not to alter the narrowband portions of the 700 MHz public safety band."

See also, statement [PDF] by Chairman Kevin Martin. This item is FCC 06-34 in WT Docket No. 96-86.

Washington Tech Calendar
New items are highlighted in red.
Monday, March 20

The House will not meet. It will next meet on Tuesday, March 28. See, Republican Whip Notice.

The Senate will not meet. It will next meet on Monday, March 27 at 1:00 PM.

10:00 AM. The Center for Democracy and Technology (CDT) will hold a telephone news conference to announce and discuss the findings of a report that traces the funding sources for the unwanted advertising software. The CDT notice states that it "untangles the adware funding model and identifies several of the mainstream companies that help to fuel the growing Internet scourge." The speakers will be CDT Deputy Director Ari Schwartz and Policy Analyst Alissa Cooper. The call-in number is 800-377-8846, and the participant code is 77665795#. Press contact: David McGuire (CDT) at 202 637-9800 x106 or dmcguire at cdt dot org.

2:30 - 4:30 PM. The American Enterprise Institute (AEI) will host a panel discussion titled "Scientific Talent and U.S. Economic Leadership". The speakers will be Richard Freeman (Harvard), Steven Davis (AEI), David Weinstein (Columbia), and Kevin Hassett (AEI). Freeman will discuss his paper titled "Does Globalization of the Scientific/Engineering Workforce Threaten U.S. Economic Leadership?". See, notice. For more information, contact Chris Pope at cpope at aei dot org or Veronique Rodman (reporters) at vrodman at aei dot org.  (This event had previously been scheduled for January 13, 2006.) Location: AEI, 12th floor, 1150 17th St., NW.

The House will not meet on Monday, March 20, through Friday, March 24. The Majority Whip's calendar identifies this as a "St. Patrick's Day District Work Period".

Day one of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Conference: Training for a Cyber-Secure Future". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Tuesday, March 21

The Supreme Court will hear oral argument in Laboratory Corp. v. Metabolite Laboratories, Sup. Ct. No. 04-607. See, Supreme Court calendar [PDF], Supreme Court docket, June 8, 2004, opinion [PDF] of the Court of Appeals (FedCir), and story titled "Supreme Court Grants Certiorari in LabCorp v. Metabolite" in TLJ Daily E-Mail Alert No. 1,244, November 1, 2005. Arguments begin at 10:00 AM. This case is second on the schedule.

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Complx Covad Comm Co v. FCC, App. Ct. No. 05-1095. Judges Ginsburg, Sentelle and Griffith will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

9:30 AM. The U.S. District Court (DC) will hold a status conference in Agence France Presse v. Google, D.C. No. 1:2005-cv-00546-GK. The complaint [19 pages in PDF] alleges that Google has infringed AFP's copyrights in photographs and news stories. AFP is represented by Joshua Kaufman of the law firm named Venable, 202 344-8538. Location: Courtroom 19, Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. The Cato Institute will host a panel discussion titled "Lobby Reform or Regression". The speakers will be Brad Smith (former Chairman of the Federal Election Commission), Nan Aron (head of the Alliance for Justice), and John Samples (Cato). Lunch will be served. See, notice and registration page. Location: Room B-354, Rayburn Building.

Day two of a two day conference hosted by the National Institute of Standards and Technology (NIST) and the Federal Information Systems Security Educators' Association (FISSEA) titled "FISSEA Conference: Training for a Cyber-Secure Future". See, notice. Location: Bethesda North Marriott Hotel and Conference Center, 5701 Marinelli Road, North Bethesda, MD.

Day one of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Wednesday, March 22

12:00 NOON - 2:00 PM. The Federal Communications Bar Association (FCBA) will host an event titled "FCBA Mentoring Luncheon". The price to attend is $20. See, registration form [PDF]. Location: Arnold & Porter, 10th floor, 555 12th St., NW.

6:00 - 8:15 PM. The Federal Communications Bar Association (FCBA) will host a continuing legal education (CLE) seminar titled "DTV: The Hard Date is Set -- What’s Next?" The speakers will include Eloise Gore (Assistant Chief of the FCC's Media Bureau's Policy Division), David Donovan (MSTV), John Orlando (CBS), and Peter Tannenwald (counsel to the Community Broadcasters Association). See, registration form [PDF]. The price to attend ranges from $75-$150. Reservations and cancellations are due by 5:00 PM on March 20. Location: Dow Lohnes & Albertson, Suite 800, 1200 New Hampshire Ave., NW.

Day two of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Thursday, March 23

12:00 NOON - 1:30 PM. The Federal Communications Bar Association's (FCBA) State and Local Practice Committee will host a brown bag lunch titled "Network Neutrality". The speakers will be Greg Sidak (Georgetown University Law Center), Randolph May (Progress and Freedom Foundation), and Jason Oxman (CompTel),Jim Kohlenberger (Voice on the Net Coalition), and Harold Feld (Media Access Project). For more information, contact Erick Soriano at 202 939-7921 or esoriano at fw-law dot com. Location: Fleischman and Walsh, Suite 600, 1919 Pennsylvania Ave., NW.

Day three of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Friday, March 24

9:30 AM. The U.S. Court of Appeals (DCCir) will hear oral argument in Bruce Gilmore v. FCC, App. Ct. No. 05-1413. See, brief [PDF] of FCC. Judges Ginsburg, Sentelle and Brown will preside. Location: Prettyman Courthouse, 333 Constitution Ave., NW.

12:00 NOON. Deadline to submit written comments to the Office of the U.S. Trade Representative (USTR) regarding the proposed free trade agreement with the Republic of Korea. The USTR seeks comments on, among other topics, "electronic commerce issues" and "trade-related intellectual property rights issues that should be addressed in the negotiations". See, notice in the Federal Register: February 9, 2006, Vol. 71, No. 27, at Pages 6820-6821.

Day four of a four day event hosted by the National Institute of Standards and Technology's (NIST) Optical Technology Division titled "Spectroradiometry Short Course". See, notice. Location: 100 Bureau Drive, Gaithersburg, MD.

Monday, March 27

The Senate will meet at 1:00 PM. It will resume consideration of of S 2349, the "Legislative Transparency and Accountability Act of 2006".

10:00 AM. The Senate Judiciary Committee (SJC) may hold an executive business meeting. The SJC frequently cancels or postpones meetings without notice. Press contact: Blain Rethmeier (Specter) at 202 224-5225, David Carle (Leahy) at 202 224-4242 or Tracy Schmaler (Leahy) at 202 224-2154. Location: Room 226, Dirksen Building.

Effective date of the U.S. Patent and Trademark Office's (USPTO) interim rule revising the rules of practice relating to the filing date requirements for ex parte and inter partes reexamination proceedings. See, notice in the Federal Register, February 23, 2006, Vol. 71, No. 36, at Pages 9260-9262.

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